Tarkington v. United States

• Decision Date: 28 January 1952
• Docket Number: No. 6375.,6375.
• Citation: 194 F.2d 63
• Parties: TARKINGTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

194 F.2d 63 (1952)

TARKINGTON v. UNITED STATES.

No. 6375.

United States Court of Appeals Fourth Circuit.

Submitted January 9, 1952.

Decided January 28, 1952.

Aubrey Whitt Tarkington, pro se, on brief.

No appearance for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This appeal is taken from an order which dismissed a motion, filed in the District Court on June 25, 1951, to vacate and set aside the judgment and sentence entered by the court on October 5, 1948 in the case of United States v. Aubrey Whitt Tarkington. The judgment was based upon a plea of guilty, filed with the advice of counsel, to an indictment wherein Tarkington and seven other defendants were charged with the robbery on September 21, 1948 of $68,662, from the East Carolina Bank of Columbia, North Carolina, by force and violence and by putting in jeopardy, by the use of firearms, the lives of the cashier, the tellers and the bookkeepers of the bank. The sentence of the court was that Tarkington be committed to the custody of the Attorney General for imprisonment for the period of twenty-five years and fined $500, the defendant not to stand committed for non-payment of the fine. No appeal was taken from this judgment.

A second count of the indictment charged Tarkington and the other defendants with the transportation, in interstate commerce on September 20, 1948, of a stolen vehicle, to wit, a Hudson automobile from Norfolk in the State of Virginia, to Columbia in the State of North Carolina. This count was dismissed as to Tarkington for lack of evidence. The other defendants pleaded guilty to both counts and received substantial sentences. The leaders in the commission of the crime were Tarkington and Henry Everett Morrison, who were white men and who were joined by six colored men in the perpetration of the offense. Morrison received a sentence of twenty-three years and $500 fine on the first count, and a concurrent sentence of five years on the second count, and each of the other defendants received a sentence of twenty years and a fine of $500 on the first count and a concurrent sentence of one year and one day on the second count of the indictment.

Tarkington's motion to vacate was based on the contention that the sentence as to him was invalid because his constitutional rights had been violated in the course of his arrest and prosecution in the following particulars:

(1) That in violation of Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., the officers who arrested him on September 21, 1948, the day of the robbery, did not take him without unnecessary delay to the nearest available commissioner. After his arrest near Columbia, North Carolina, he was transferred thirty-four miles to Edenton, North Carolina, and lodged in jail until the next day when he was transferred to Plymouth, North Carolina, a distance of twenty-eight miles where he was given a preliminary hearing and committed for trial. He was then transferred to Wilson, North Carolina, a distance of one hundred and forty miles, where he was confined until October 5, 1948 when he was transferred to Washington, North Carolina, a distance of ninety miles where he was arraigned and sentenced. It is Tarkington's contention that he was transferred in this manner from jail to jail so as to prevent him from communicating with counsel and having the assistance and advice of counsel in the preparation of his defense.

(2) That the prisoner was not furnished with counsel at the preliminary hearing.

(3) That W. L. Whitley of Plymouth, North Carolina, an attorney at law, who appeared for him at the time of his arraignment, had been previously employed by his relatives and had promised to go to see him in jail and confer with him about his defense, but had failed to do so, so that the prisoner had no opportunity to confer with counsel until October 5, a short time before the plea of guilty was entered; and that at that time the attorney did not discuss the charge of robbery with the prisoner but only the charge contained in the second count of the indictment, and that the plea of guilty to the charge of robbery was entered by the attorney contrary to the direction and without the consent of the prisoner.

(4) That in violation of Rule 10 of the Federal Rules of Criminal Procedure the indictment was not read nor was the substance of the charge stated at the arraignment nor was a copy of the indictment furnished to the prisoner before he was called upon to plead; and that in violation of Rule 11 of the Criminal Rules the judge, before accepting the plea of guilty, did not determine that the plea was made voluntarily and with understanding of the nature of the charge.

(5) That the judge failed to comply with the requirement of Rule 32(c) (1) of the Criminal Rules which provides that the probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation, unless the court otherwise directs.

(6) That the prisoner was not present at the scene of the crime on September 21, 1948, but was some miles distant at the time of the armed robbery of the bank, and was therefore not guilty of the crime charged in the first count of the indictment.

Judge Henderson, who imposed the sentence in this case, ceased to be a judge prior to the hearing of the motion to vacate, and the motion came on to be heard before Judge Gilliam. In making his determination he took into consideration the court records in the case, including the transcript of the proceedings at the time of the arraignment and the testimony of the attorney who appeared for the prisoner. Judge Gilliam had previously heard and dismissed separate motions of four co-defendants of Tarkington to vacate the sentences imposed upon them, and had also previously considered and passed upon a prior motion filed by Tarkington on July 26, 1949 to vacate the sentence imposed upon him. In this motion Tarkington contended that the sentence imposed upon him was invalid, because W. L. Whitley, the attorney employed by his family to represent him, was also appointed by the judge, together with another attorney, to represent all the other defendants, and that the interests of the other defendants conflicted with those of Tarkington and hence his attorney was unable to give him the advice and assistance to which he was entitled. A hearing was had on this motion at which the testimony of Whitley was considered and the court, finding that Whitley was an experienced and competent attorney, and that there was no conflict in interest, dismissed the motion. No appeal was taken from this order.

The facts on which the judge based his findings and conclusions with respect to the pending motion are not in dispute. Tarkington was the organizer and leader of the group of eight men, consisting of two white men, Tarkington and Morrison, and six colored men, who met in Norfolk, Virginia in September, 1948 and planned the crime. Tarkington and Morrison...